( 1. ) PETITIONER has filed this petition challenging the order dated 1-8-2003 passed in Civil Suit No. 111-A/2003 (Ashutosh Dubey v. Tilak Grah Nirman Sahakari Samiti) by which the Trial Court has issued a commission for investigating the fact that who is in possession of the disputed property.

( 2. ) THE aforesaid order passed by the Trial Court has been assailed by the defendants on the following grounds :-

(i) That the similar prayer was made before the Trial Court vide application (Annexure P-2), dated 84-2002 and the Trial Court vide order dated 21-1-2002 rejected the prayer on the ground that commission can not be issued for ascertaining the fact that which of the party is in possession of the suit property. (ii) That again vide application Annexure P-5, dated 23-7-2003 similar prayer has been made and the Trial Court by the impugned order dated 1-8-2003 has allowed the aforesaid prayer. (iii) That no commission can be issued for ascertaining the fact that which party is in possession of the property. This is a matter of evidence which is to be investigated by the Trial Court

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( 3. ) CONTENDING the aforesaid learned Counsel for the petitioner submits that the Court below erred in exercising the jurisdiction under Order 26 Rule 9, CPC and impugned order may be quashed.

( 4. ) LEARNED Counsel appearing for the respondents while supporting the order submits that the petitioner has suppressed the fact that the aforesaid order dated 1-8-2003 was subject matter of the review application before the Trial Court and the Trial Court vide order dated 18-9-2003 rejected the application and the aforesaid order has not been challenged by the petitioner so this petition deserves to be dismissed on this ground. The Trial Court has rightly issued commission. Previous application was filed when the Trial Court considering the application under Order 39 Rules 1 and 2, CPC. If such an application was rejected by the Trial Court at that stage then the Trial Court was not debarred from considering the application afresh at the stage of the evidence. In this regard he has placed reliance to the Single Bench judgment of this Court in the case of Mangilal and Anr. v. Gourishankar and Anr. (AIR 1992 MP 309) and contended that this revision may be dismissed. Apart from this, scope of writ petition under Article 227 of the Constitution has been considered recently by the Apex Court in the case of Surya Dev Rai v. Ram Chander Rai and Ors. , (2003) 6 SCC 675, as per the law laid down by the Apex Court, this petition did not fulfill the criterias fixed by the Apex Court in Para 38 of the judgment. Consequently this petition may be dismissed.

( 5. ) FROM the perusal of the order dated 21-1-2002 when the Trial Court considered, I. A. No. 3823/2003 under Order 26 Rule 9, CPC has rejected the similar prayer of the petitioner for issuing of the commission for ascertaining the fact that which of the party is in possession of the property. Similar prayer again made by the petitioner which has been allowed by the Trial Court. When the similar prayer was rejected by the Trial Court on earlier occasion even though at the stage when the Trial Court was considering the application under Order 39 Rules 1 and 2, CPC, at subsequent stage the similar prayer can not be allowed. Apart from this the scope of Order 26 Rule 9, CPC is to ascertain the matter in dispute, market value of any property, mesne profit or damages etc. But issuing of commission for investigating the fact that which of the party is in possession of the property is beyond the scope of Order 26 Rule 9, CPC. This question has to be decided by the Court after adducing the evidence by the parties. The Court has to record findings in this regard and the aforesaid job of the Court can not be shifted to the Commissioner. In the circumstances the Trial Court has exceeded his jurisdiction in issuing such a commission ascertaining the fact that which party is in possession of the property.

( 6. ) SO far as